01A43010_r
07-29-2004
Brenda W. Johnson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Brenda W. Johnson v. Department of Veterans Affairs
01A43010
July 29, 2004
.
Brenda W. Johnson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43010
Agency No. 200M-0543-2003100653
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Customer Assistant/Ward Clerk, GS-5, at the agency's VA Medical
Hospital, Patient Services in Columbia, Missouri. Complainant sought EEO
counseling and subsequently filed a formal complaint on January 6, 2003.
Therein, complainant claimed that she was discriminated against on the
basis of race (African-American) when her supervisor allegedly treated
her differently than others in reference to utilization of leave.
Specifically, complainant alleged that:
on November 15, 2002, she received a written confirmation of verbal
counseling concerning sick leave usage;
on November 19, 2002, she was issued a written counseling regarding sick
leave abuse;
on November 25, 2002, she received a call at home from her supervisor
regarding correct procedures for requesting leave; and
on January 7, 2003, she was issued an admonishment for failure to follow
proper leave procedures.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. The record
reflects that complainant initially requested a hearing, but that the
request was subsequently withdrawn. The agency thereupon issued a FAD
finding no discrimination.
The agency concluded that complainant failed to establish a prima facie
case of race discrimination. The agency determined that complainant
failed to show that similarly situated employees were treated more
favorably under similar circumstances. The agency further concluded
that management articulated legitimate, nondiscriminatory reasons for its
actions and complainant failed to show that these reasons were a pretext.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its employment action, which we determine
were not persuasively rebutted by complainant. The record in this
case contains an affidavit from complainant's Supervisor. Therein,
the Supervisor stated that on November 15, 2002, she gave complainant
a verbal counseling concerning a November 14, 2002 incident, when
complainant did not follow proper procedures by failing to page the
Supervisor to inform her that complainant would not report to work.
The Supervisor further stated that on November 19, 2002, she issued
complainant a sick leave counseling letter concerning her excessive usage
of sick leave from September 6, 2002 to November 19, 2002. The Supervisor
stated that in the counseling letter, complainant was notified that she
would monitor her sick leave usage over the next four months.
With respect to complainant's claim that on November 25, 2002, the
supervisor called her at home, the Supervisor stated that she had no
recollection of the alleged phone conversation and that she had no
documentation of the phone conversation.
Further, the Supervisor stated that on January 7, 2003, she issued
complainant an admonishment letter concerning several incidents of failure
to follow proper procedure. The Supervisor stated that on November 20,
2003, complainant requested sick leave for a November 27, 2003 medical
appointment, but was informed that she could not use sick leave that
day because another employee had already requested annual leave.
The Supervisor further stated that she met with complainant and her
representative concerning the denial of complainant's sick leave request
for November 27, 2003 and they reached an agreement that complainant
would report to work on November 27, 2003, but that if she becomes ill,
she would go to the emergency room so there would be documentation showing
that she needed to go home. The Supervisor stated that on November 27,
2003, complainant became ill and instead of going to the emergency room,
she went to the nursing coordinator and requested annual leave for the
remainder of her shift. Furthermore, the Supervisor stated that on
November 28, 2003, upon learning that complainant had left work early
on November 27, 2003, without following the plan she discussed with
complainant and her representative, she issued her an admonishment letter
�for not following proper procedures because it was her second incident.�
We find that complainant has not demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
Accordingly, the agency's finding of no discrimination was proper and
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 29, 2004
__________________
Date